COOPER’S CONVICTION.

Otago Daily Times, Issue 18874, 29 May 1923, Page 2

COOPER’S CONVICTION.

APPLICATION BEFORE APPEAL . COURT. ADMISSIBILITY OF CERTAIN EVIDENOE. LEAVE TO APPEAL REFUSED. (P*b United Press Association.) WELLINGTON, May -28. Tlie Court of Appeal this morning heard argument in the matter of the application by Daniel Richard Cooper. for leave to appeal to the Court of; Appeal against Ins conviction for murder. ;;; • At Cooper’s trial his counsel (Mr C. L, Treadwell) asked Dir Justice- Chapman to reserve for the opinion of the Appeal Court the following questions? — 1. The point as to - the admissibility ' against Cooper of evidence relating to the disappearance of any.; other child than M'Leod’s child, the one for the murder of whom he was indicted. 2. As to whether Cooper and his wife should not have been tried separately. Mr Justice Chapman, however, refusfed to reserve these questions, admitted the evidence objected to, and refused a separate trial. The motion for leave to appeal to the court was therefore tiled this morning before the court, Mr Treadwell, and with him Mr Hanna, appeared in support of the motion, while Mr W. C. MacGregor, K.C. (Solicitorgeneral), and with him Mr P. S. K. Macassey, for the' Crown, opposed. On the Bench were his Honor Sir Robert Stour. Mr Justice Hosking, and Sir John Salmond. Mr Treadwell, for Cooper, said that he did not intend to argue the Question of a separate trial, but os to the admissibility of evidence he submitted that the evidence objected to was not admissible on the ground that there was no prima facie case of murder by the Coopers, or either of them, at the lime, when such evidence was, tendered by the Crown. Sir John Salmond: You say that such evidence is not admissible unless there is sufficient evidence to convict without it? Mr Treadwell: Yes.

Sir Robert Stout (Chief Justice): Then it would be-useless admitting such evidence at. all. ... . Mr Treadwell, continuing Ins argument, said that unless the corpus delicti yas established there was iio case to, go to the jury. Sir John’Salmond ; .Whiit -is ■ “corpus delicti”? Apparently it is the offence in itseif, independent of the question, of who committed it,. Mr Treadwell: Yes.

Mr Treadwell, in continuation of bis argument, dealt with the legal authorities, which, he contended, supported his propositions. There was, he said. no. evidence' at the time the evidence objected to' was tendered that M'Eeqd’s child' was dead, much less murdered, 'The, identity of the body found was not proved; it was only after the facts of a murder had been established that evidence as to other bodies being found could be adduced for the purpose of proving .that an accused was the culprit; Sir John Salmond: -Mjrst there be a prima facie case of felonious intent for the evidence to be admitted? Mr Treadwell: There ,must be proof‘of murder. .

Sir John: You sav that such evidence is only admissible to confirm a prima facie case of felonious intent, in a case which is ready, tp go to a- jury? Mr Treadwell : Yes. Sir John Salmond: Must, (here. ‘be a prima facie case on which accused could be convicted? Mr Treadwell contended further that the Crown could not call evidence of similar, hut unconnected-Tacts to prove the .main.' fact on which ttje Crown relied. The evidence as' to Miss' Conclrich’s child was, he said, inadmissible in that, it did not tend to prove intention to commit murder: Continuing his argument. Mr Treadwell said that in the Well known New Zealand case of Tlox versus Deans (a baby farming case), tho body ,of the child in respect of which the charge of murder was laid, had been identified before evidence as to the discovery- of the other bodies was admitted. In Cooper’s case :tjie, body of the child was v not identified. »" •

Sir Robert' Sloui : Surely there was evidence of-identification? ; . •Mr Teradwell: It is submitted that there was no reasonable evidence of identification There can be no' reasonable doubt that identification was not .'established,’and. could nqt be.'jestabiished by evidence. Continuing, *Mr'''T'rOadvvcll, said.' (hat to estal> lish a prima facie case evidence must go n long-way- further-than that. For instance, ,in.-a charge of concealment of birth even a confession of murder would not be said to establish a prima facie care of murder against the person ’ making the confession. Sir John Salmond: What authority have you for (hat statement?

Mr Treadwell referred.;!© a legal authority, ■on the. law of- evidence, which -he- main"tained supported this T,Topositton. ’rhete must, he concluded, be cogent evidence, and not mere speculation to establish a prima facie case of murder. In Cooper’s case snob evidence was not present. Mr W. C. MacGregor. K.C., Solicitorgeneral, for the Crown, said that Mr Treadwell’s submissions were based on a misconception of the law. These contentions were, ho said, disposed of in the New South Wales baby-farming case of Makin versus the Attorney-general of New; South Wales. The true position, he said, .was .that in’proper oases evidence of similar but unconnected facts could be admitted to show that accused wag guilty of the particular crime charged. Cooper’s was such a case. In Cooperls statements he admitted receiving children', and he had even used the words “system and business.” Why should not the Crown show what had become of tho children?

Sir John Salmond: That is the question we have to decide. The legal position in New - Zealand, said the Solicitor-general, was set out in the case of Rex v. Whitta (case of a charge of bookmaking). That case, lie said, showed that,, evidence of similar but unconnected facts was admissible to prove the main charge.. Mr Justice Hosking: Could the Crown have set out and given evidence of those other bodies without first living evidence of the main fact charged against Cooper? The -Solicitor-general: Is l is submitted that it could. Mr Treadwell addressed the court shortly in reply, and said that the case of Matin versus the Attorney-general of New South Wales did not touch the present case. At the conclusion of the argument the Chief Justice said that the court was of opinion that leave to appeal must he refused, but that in view of the gravitv of the case the reasons of the court would be given in writing, either on Tuesday or Wednesday next. The Court of Appeal^then adjourned until 10.20 to-morrow - morning.